Discontent in the Supreme Court due to the "excessive" interference of the Constitutional Court in its sentences

An excess of functions is seen in the rulings on Rodríguez and Otegi

MADRID, 17 Ene. (EUROPA PRESS) -

The Constitutional Court (TC) has adopted two significant rulings this week, in the cases of former Unidas Podemos deputy Alberto Rodríguez and the general coordinator of EH Bildu, Arnaldo Otegi, which amend the decisions adopted by the Supreme Court (TS) in both issues, something that has generated discomfort in this judicial headquarters when considering that the court of guarantees has exceeded its functions by invading those of the TS.

The object of the controversy is, on the one hand, the decision of the Plenary of the TC to annul the sentence that the Supreme Court imposed on Rodríguez for kicking a police officer during a demonstration in La Laguna (Tenerife) held in 2014 against the 'law Wert'. He was sentenced to 1 month and 15 days in prison, as the main penalty, and to disqualification from exercising the right to passive suffrage, as an accessory penalty.

Subsequently, the Supreme Court replaced the prison sentence with a fine of about 540 euros but maintained his disqualification, which caused him to lose his seat. For the TC, this ruling represented a "disproportionate sacrifice." In his opinion, when prison was replaced by a fine, the accessory penalty should have declined, although the Constitution's own ruling admits that this legal operation gives rise to a "controversial interpretation."

As for Otegi, this Wednesday the Plenary Session has agreed to protect him by annulling the Supreme Court's order to repeat the trial against him for the 'Bateragune case', understanding that it would mean violating the criminal principle that prohibits trying the same person twice for the same facts, but in parallel maintains the sentence handed down at the time by the National Court (AN), with sentences of up to 6 and a half years in prison that have already been served.

This last sentence has generated more division than usual within the TC, where it is already common for the so-called progressive and conservative blocs - made up of 7 and 4 magistrates, respectively - to vote separately. Otegi's sentence will also have a concurrent vote of three progressive judges because they do not share with their other colleagues that the ruling adopted by the Plenary has consequences other than the annulment of the order to repeat the trial.

From the Supreme Court, they appreciate in both sentences an "excessive" interference by the Constitutional Court in its study of those issued by the TS. The legal sources consulted by Europa Press agree that the powers of both courts are perfectly delimited, with the high court being the highest interpreter of the law in all its jurisdictional orders and the court of guarantees, of the Magna Carta.

This implies that the Second Chamber of the TS is the authorized voice to interpret criminal law, so that the Constitutional Court should limit itself to determining whether said interpretation has caused any violation of fundamental rights, the aforementioned sources state.

In these cases, they believe that the Constitutional Court has gone too far because it begins to analyze whether the solutions provided by the Supreme Court were correct, a level of detail that they believe does not conform to the functions entrusted to the headquarters of Domenico Scarlatti because it entails invading the ordinary jurisdiction, which is the playing field of the TS.

They warn that this "excess" implies turning the Constitutional Court into a third instance that is not provided for in our legal system, in addition to a "lack of respect" for the Supreme Court. The sources consulted directly describe the current situation in the court of guarantors as "that of the Marx Brothers' cabin."

However, at the same time they remember that this "train crash" between the Supreme Court and the Constitutional Court is not new. In 2008, the Criminal Chamber issued an agreement in which it openly criticized the TC when it understood that it had exceeded its constitutional jurisdiction by acquitting businessmen Alberto Cortina and Alberto Alcocer of a crime of fraud on the grounds that their conduct in the 'case Urbanor' was prescribed.

The 14 judges of the Second Chamber present at the meeting - all except the emeritus - issued a statement in which they defended that the Constitution in its article 123 establishes that the Supreme Court is the maximum interpreter of the criminal law. At that time, Judge Cándido Conde-Pumpido – now president of the TC and judge of the Supreme Court between 1995 and 2017 – served as State Attorney General.

The agreement in question reiterated warnings that were not new even then. The high court had notified the Constitutional Court in May 2005 and in April 2006 of its intention to maintain its jurisprudence on the interruption of the prescription of crimes and to defend its supremacy as far as the interpretation of the laws is concerned.

Although the unrest is once again present in the corridors of the Supreme Court, the sources consulted assure that at the moment the court has not considered drafting a new agreement related to the recent rulings of the Constitutional Court on Rodríguez and Otegi.